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Last Post 22 May 2008 12:10 PM by  Gary LaFleur
R-08-0009 Rule 9, Rules of Procedure Civil Traffic
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PScott
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10 Jan 2008 04:20 PM
    R-08-0009

    PETITION TO AMEND THE RULES OF PROCEDURE CIVIL TRAFFIC CASES, RULE 9

    TO GRANT LAW ENFORCEMENT STANDING TO WITHDRAW A COMPLAINT DUE TO THE PARTY BEING MISIDENTIFIED, AN EQUIPMENT MALFUNTION, OR IMPROPER CALIBRATION OF EQUIPMENT

    Petitioner:
    Judge Dennis Lusk
    Apache Junction Justice Court
    575 N. Idaho Rd., Ste. 200
    Apache Junction, AZ 85219
    Phone: (480) 982-2921
    Fax: (520) 866-6153
    Email: dlusk@courts.az.gov

    Filed January 10, 2008

    Comments due on May 20, 2008.

    REJECTED by order dated September 16, 2008.
    Attachments
    Gary LaFleur
    Posts:

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    22 May 2008 12:10 PM
    Hon. Gary J. LaFleur
    Chandler Municipal Court
    200 E. Chicago St.
    Chandler, AZ 85225
    480-782-4700
    Gary.LaFleur@azbar.org


    COMMENTS ON PROPOSED CHANGES TO RULE 9
    RULES OF PROCEDURE IN CIVIL TRAFFIC VIOLATION CASES

    The judges at our court have reviewed the proposed amendment to Rule 9 of the Rules of Procedure in Civil Traffic Cases and are unanimous in our opinion that the proposed rule should not be adopted. My objection is based on the following concerns.

    Unauthorized Practice of Law

    The Petitioner correctly notes that a law enforcement officer does not have standing to amend a traffic complaint after it is filed with a court. Although the petition references Guideline 2 from the Court Implementation Guide, reference to Supreme Court Rule 31 reaches the same conclusion. Among the activities defined as practicing law are: preparing any document in any medium intended to affect or secure legal rights for a specific person or entity Rule 31 (a) (2) (A) (1); representing another in a judicial, quasi-judicial, or administrative proceeding, or other formal dispute resolution process such as arbitration and mediation Rule 31(a) (2) (A) (3); and, preparing any document through any medium for filing in any court, administrative agency or tribunal for a specific person or entity. Rule 31 (a) (2) (A) (4). The unauthorized practice of law includes engaging in the practice of law by persons or entities not authorized to practice pursuant to paragraphs (b) or (c) or specially admitted to practice pursuant to Rule 33(d). Rule 31 (a) (2) (B) (1). The only persons allowed to practice law in Arizona are active members of the state bar, unless one of the exemptions under Rule 31 (d) apply, none of which are applicable to law enforcement personnel under the proposed rule. The proposed rule would have law enforcement officials, the vast majority of whom are not members of the state bar, filing materials with courts and taking actions that affect the disposition of traffic cases. The fact that some government attorneys choose to not be involved in civil traffic cases does not sanction the unauthorized practice of law.

    Complaint Withdrawal is Not Appropriate

    The concept of withdrawing a complaint is without precedent or merit. Once any pleading, let alone the complaint commencing a case, is filed with a court it cannot be withdrawn and undone. The court assigns a case number and opens a file. Within that file motions are made and under certain circumstances are withdrawn by the party making the motion. Withdrawal in this sense does not include physically withdrawing the action, does not undo the filing of the case or immediately resolve the merits of the case. To use a cliché, the filing of a case is ringing a bell and it cannot be un-rung by unilaterally determining it should have not been rung in the first place. The procedure for such complaints is a motion to dismiss, filed by the proper legal representative.

    Improper Complaint Disposition and Administrative Difficulties

    What would courts do with the cases that were “withdrawn?” A.R.S. 28-1558 (B) requires:
    On the deposit of the original or a copy of the traffic complaint with a court having jurisdiction over the alleged offense or with its traffic violations bureau, the original or copy of the traffic complaint may be disposed of only by trial in the court or other official action by a judge of the court or a hearing officer, including forfeiture of the bail or by the deposit of sufficient bail with or payment of a fine or civil penalty to the traffic violations bureau by the person to whom the traffic complaint was issued.

    Withdrawal by a law enforcement agency is not one approved methods to dispose of a traffic citation and it is submitted that even if a rule authorized the procedure, this can be construed as official misconduct under A.R.S. 28-1558 (C) that makes it official misconduct to dispose of a traffic complaint in a manner not authorized under the statute.

    Additionally, once cases are filed courts have to file the final adjudication with the Motor Vehicle Division within 10 days under A.R.S. §1559 (B). The Division does not have a way to report withdrawn traffic citations.

    The process would be an administrative burden for courts. Court time and resources would be needlessly expended tracking the withdrawn cases to assure any sanction payments were refunded and defensive driving school records cleared, along with refunds to defendants in these cases.

    If it was determined non-lawyer law enforcement officials could file materials with courts, that withdrawal could be accomplished without violating the clear provisions of Title 28 and a method devised to minimize expenditure of court resources, the proposed rule change is still not appropriate. The proposed language eliminates the current subsection (d) of Rule 9 that authorizes correction of conflicts between the written description of a violation and the statutory designation. This is an extremely valuable provision in civil traffic cases and no basis is shown for elimination of the provision.

    Assuming the designation of subsection (d) and elimination of the current provision was inadvertent, the proposed rule is overly broad and vague. The proposed language is not limited to electronically generated complaints, but simply civil traffic complaints, including those issued by law enforcement officers. This concept is carried forward in subsection (d) (2) where “device” is used without limitation to electronic traffic control systems. Lidar and radar speed detection instruments are devices, as are vehicle speedometers. This allows law enforcement the opportunity to review every citation for an undetermined period of time. The net result would be to encourage sloppy law enforcement. The ability to withdraw mistakes is the ability to cover up inefficiency without any independent review or consequences.

    Existing Procedure

    Finally, if an actual problem could be quantified, the solution already exists in motions to dismiss from the State, either on an individual basis or under a standing or continuing motion. This procedure has the proper party filing the proper motion, creating a record of what occurred and facilitating reporting of adjudications.

    Respectfully submitted,

    Gary J. LaFleur
    Judge, Chandler Municipal Court


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